Lawyers take aim at Texas' asset forfeiture law

Suit seeks to change law on civil asset forfeitures

BRIAN ROGERS, HOUSTON CHRONICLE |
May 12, 2010

In a police parking lot in east Houston sits a red 2004 Chevy Silverado, oblivious to the fact it is being sued.

No longer just the bane of international drug kingpins, asset forfeiture laws can target money and property used in myriad crimes including, in this case, felony DWIs.

Now, a Washington, D.C. law firm and the American Civil Liberties Union want to use the lawsuit to change the laws governing civil asset forfeiture in Texas.

“Texas has some of the worst civil forfeiture laws in the country, and what's driving this is the fact that police and prosecutors get to keep the property they seize,” said Scott Bullock, an attorney with the Institute for Justice, a D.C.-based libertarian law firm studying civil forfeiture laws nationwide. “They can use it to buy better equipment, to buy better automobiles, even to pay salaries, and we feel is an untoward profit incentive.”

Legislators and Harris County prosecutors say forfeiture laws are fair and work.

“It's criminals paying for investigations and law enforcement,” said Karen Morris, chief of the Harris County District Attorney's civil asset forfeiture division. “It eases the burden on taxpayers.”

The truck in the middle of the dispute has gathered dust more than a year after being confiscated from Robert Faustino, a Houston man arrested, convicted and sentenced to six years in jail for driving while drunk.

Faustino agreed to buy the truck for $20,000 in 2004 from Zahar El-Ali, who said he still is owed $2,350. El-Ali wants the truck returned to him.

‘My truck doesn't drink'

The Harris County DA's office wants to sell the truck, pay El-Ali what he is owed — which it estimated at about $300 — and put the rest in its asset forfeiture fund to be used for law enforcement-related purposes.

Under state law, the seized property is sued. Anyone with an interest in it, like El-Ali, is a third-party claimant.

“Innocent owners like me should not have their property taken without being convicted of a crime,” El-Ali contended. “My truck doesn't drink. My truck didn't do anything wrong.”

Morris said El-Ali is not an “innocent owner.”

“He's a lien holder,” Morris said. “As a lien holder, his interests are absolutely protected. And he will get his $300.”

Typically, Morris said, if a seized vehicle is worth more than the loan, the vehicle is auctioned and the lien holder is paid first. If the vehicle is worth less than the loan, the lien holder can just get the vehicle back.

“There are two types of forfeiture,” she said. “Either you're doing it to deprive them of ill-gotten gains, or you're doing it to protect society. In this case, we're taking the truck from Mr. Faustino so he doesn't drive drunk again when he gets out of jail.”

Call for accountability

Representatives for the Institute of Justice have filed arguments challenging the constitutionality of the law.

“The goals in this case are to get Mr. El-Ali's truck back and to change Texas law to better protect property owners,” Bullock explained.

The ACLU also takes issue with the law, arguing that there are not enough checks or accountability in the system, said Vanita Gupta, director of the national ACLU's Center for Justice

“The concern that we have about civil asset forfeiture laws generally, and in Texas specifically, is that they sort of lend themselves to the likelihood of abuse,” Gupta said. “The barriers for a victim of asset forfeiture to actually be able to establish that he or she is the rightful owner of legitimately obtained money are so incredibly high. The money is too easy for law enforcement.”

Abuses elsewhere

Forfeiture laws in Texas and across the country have come under fire from several angles, including the Legislature, after abuses in other parts of Texas surfaced.

Whitmire authored a bill during the last session that would have limited some of law enforcement's powers in forfeiture cases. The measure died in the House.

Morris said the Harris County District Attorney's office worked with Whitmire on changing the law, and does not oppose increased regulations.

She said her division files more than 80 such cases a month and typically takes in between $6 million and $8 million a year, mostly money tracked to drug transactions. Last year, a single stock fraud case boosted the amount to a total of $12 million.